No. 16-3480 UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MOHAMMED HASSAN FAIZAL KHALID

Petitioner,

v.

JEFFERSON B. SESSONS, III, Attorney General,

Respondent.

On Petition For Review of a Decision of the Board of Immigration Appeals

Agency No. A (Non-Detained)

BRIEF OF AMICI CURIAE CENTER FOR FAMILY REPRESENTATION,

HER JUSTICE, SANCTUARY FOR FAMILIES, THE DOOR’S LEGAL

SERVICES CENTER, COLUMBIA LAW SCHOOL IMMIGRANTS’

RIGHTS CLINIC, IMMIGRANT RIGHTS CLINIC AT NYU SCHOOL OF

LAW, KATHRYN O. GREENBERG IMMIGRATION JUSTICE CLINIC

AT BENJAMIN N. CARDOZO SCHOOL OF LAW, BROOKLYN

DEFENDER SERVICES, MONROE COUNTY PUBLIC DEFENDER’S

OFFICE, NEIGHBORHOOD DEFENDER SERVICE OF HARLEM, NEW

YORK COUNTY DEFENDER SERVICES, THE BRONX DEFENDERS,

THE LEGAL AID SOCIETY, CENTER FOR CONSTITUTIONAL

RIGHTS, IMMIGRANT DEFENSE PROJECT, AND PROFESSORS CHRIS

GOTTLIEB, KIM TAYLOR-THOMPSON, MARTIN GUGGENHEIM,

MICHAEL WISHNIE, RANDY HERTZ, AND TONY THOMPSON IN

SUPPORT OF PETITIONER AND IN SUPPORT OF GRANTING THE

PETITION FOR REVIEW

Andrew Wachtenheim

Immigrant Defense Project

40 West 39th Street, Fifth Floor

New York, NY 10018

Telephone: (646) 760-0588

Counsel for Amici Curiae June 24, 2017

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES .................................................................................. iii

INTEREST OF AMICI CURIAE .............................................................................. 1

SUMMARY OF ARGUMENT ................................................................................ 3

STANDARD OF REVIEW ...................................................................................... 4

ARGUMENT ............................................................................................................ 5

I. EVERY YEAR, INCARCERATION, JUVENILE DETENTION,

IMMIGRATION DETENTION, AND FOSTER CARE

PLACEMENT IMPOSE TEMPORARY PERIODS OF

SEPARATION ON THOUSANDS OF FAMILIES ACROSS THE

UNITED STATES ........................................................................................ 5

A. Thousands of Families Every Year Face Forced, Temporary

Separation, with No Legal Change to the Relationship

Between Family Members ................................................................. 5

B. Systemically-Created, Forced, Temporary Separation Has a

Hugely Disproportionate Impact on Black and Latino

Families ................................................................................................ 8

C. The Statutory Factors That Determine Forced, Temporary

Separation Do Not Include a Parent’s Legal and Physical

Custody .............................................................................................. 12

II. TO AVOID VIOLATING ESTABLISHED CONSTITUTIONAL

RIGHTS THAT BEAR ON THE RELATIONSHIP BETWEEN

PARENTS AND CHILDREN, THE STATUTORY TERM

“LEGAL AND PHYSICAL CUSTODY” CANNOT BE READ

TO BE DEFEATED BY A PERIOD OF FORCED,

TEMPORARY SEPARATION ................................................................. 15

A. The BIA’s Reading of the Statutory Term “Legal and

Physical Custody” Impinges on the Relationship Between

Parents and Children That Is Protected by the

Constitution’s Due Process Clause ................................................. 15

ii

B. The Canon of Constitutional Avoidance Forecloses the

BIA’s Reading of the Statutory Term “Legal and Physical

Custody” ............................................................................................ 18

III. THE RULE OF LENITY LIKEWISE FORECLOSES THE

BIA’S INTERPRETATION OF THE STATUTORY TERM

“LEGAL AND PHYSICAL CUSTODY” ................................................ 10

CONCLUSION ....................................................................................................... 22

CERTIFICATE OF COMPLIANCE

CORPORATE DISCLOSURE STATEMENT

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Armstrong v. Manzo,

380 U.S. 545 (1965) ............................................................................................... 8

Boddie v. Connecticut,

401 U.S. 371 (1971) ............................................................................................. 16

Bolling v. Sharpe,

347 U.S. 497 (1954) ............................................................................................. 11

Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc.,

467 U.S. 837 (1984) ............................................................................................... 4

Clark v. Martinez,

543 U.S. 371 (2005) ................................................................................ 18, 21, 22

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974) ............................................................................................. 17

Crandon v. United States,

494 U.S. 152 (1990) ............................................................................................. 20

DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,

485 U.S. 568 (1988) ............................................................................................. 18

Delgadillo v. Carmichael,

332 U.S. 388 (1947) ............................................................................................... 8

Diop v. Att’y Gen. of the United States,

656 F.3d 221 (3d Cir. 2011) ................................................................................... 7

Esquivel-Quintana v. Lynch,

810 F.3d 1019 (6th Cir. 2016) .............................................................................. 21

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) ......................................................................................... 22

iv

FCC v. ABC,

347 U.S. 284 (1954) ...................................................................................... 20, 21

Jones v. United States,

529 U.S. 848 (2000) ........................................................................................ 3, 18

Judulang v. Holder,

545 U.S. 42 (2011) ................................................................................................. 8

Kasten v. Saint-Gobain Performance Plastics Corp.,

563 U.S. 1 (2011) ................................................................................................. 21

Landon v. Plasencia,

459 U.S. 21 (1982) .......................................................................................... 7, 17

Leocal v. Ashcroft,

543 U.S. 1 (2004) .......................................................................................... 20, 21

Lora v. Shanahan,

804 F.3d 601 (2d Cir. 2015) ................................................................................. 18

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) ...................................................................................... 11, 16

Matter of Adeniji,

22 I. & N. Dec. 1102 (BIA 1999) ......................................................................... 13

Matter of Guerra,

24 I. & N. Dec. 37 (BIA 2006) ............................................................................. 13

Matthews v. Eldridge,

424 U.S. 319 (1976) .................................................................................. 8, 14, 17

Moore v. East Cleveland,

431 U.S. 494 (1977) ............................................................................................. 17

Morales-Santana v. Lynch,

804 F.3d 520 (2d Cir. 2015) ................................................................................... 4

v

Nwozuzu v. Holder,

726 F.3d 323 (2d Cir. 2013) ................................................................................... 7

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ............................................................................................. 17

Quilloin v. Walcott,

434 U.S. 246 (1978) ...................................................................................... 15, 17

Santosky v. Kramer,

455 U.S. 745 (1982) ...................................................................................... 16, 17

Scheidler v. Nat’l Org. for Women, Inc.,

537 U.S. 393 (2003) ............................................................................................. 21

Sessions v. Morales-Santana,

__ U.S. __, 2017WL2507339 (2017) ..................................................................... 4

Stanley v. Illinois,

405 U.S. 645 (1972) ............................................................................................. 17

United States v. Martinez,

525 F.3d 211 (2d Cir. 2008) ................................................................................. 18

United States v. Bass,

404 U.S. 336 (1971) ............................................................................................. 20

United Sates v. Thompson/Center Arms Co.,

504 U.S. 505 (1992) ...................................................................................... 20, 21

Valenzuela-Gallardo v. Lynch,

818 F.3d 808 (9th Cir. 2016) ................................................................................ 18

Washington v. Davis,

446 U.S. 229 (1976) ............................................................................................. 11

Zadvydas v. Davis,

533 U.S. 678 (2001) ............................................................................................. 18

vi

STATUTES

8 U.S.C. § 1101(a)(43) ............................................................................................. 19

8 U.S.C. § 1253(a)(1) ............................................................................................... 19

8 U.S.C. § 1326 ........................................................................................................ 19

8 U.S.C. § 1327 ........................................................................................................ 19

8 U.S.C. §1431 ................................................................................................. passim

Conn. Gen. Stat. §46b-133(c) (West) ...................................................................... 13

Conn. Gen. Stat. §46b-129(b) (West) ...................................................................... 14

Conn. Gen. Stat. §54-64a (West) ............................................................................. 13

N.Y. Crim. Proc. Law §510.30(2) (McKinney 2017) ............................................. 12

N.Y. Fam. Ct. Act §320.5(3)(a) (McKinney 2017) ................................................. 13

N.Y. Fam. Ct. Act §1028(a) (McKinney 2017) ....................................................... 14

Vt. Stat. Ann. tit. 13, §7554 (West) ......................................................................... 13

Vt. Stat. Ann. tit. 33, §5308(a) (West) ..................................................................... 14

OTHER AUTHORITIES

Administration for Children and Families, U.S. Dept. of Health and Human

Services, 23 The AFCARS Report, available at

https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport23.pdf (last visited

June 23, 2017) ......................................................................................................... 6

Administration for Children and Families, U.S. Dept. of Health and Human

Services, ACYF/Recent Deomographic Trends in Foster Care (Sept. 2013),

available at

https://www.acf.hhs.gov/sites/default/files/cb/data_brief_foster_care_trends1.pdf

(last visited June 23, 2017) ................................................................................... 10

vii

City of New York Dept. of Correction, Population Demographics Report,

available at

https://www1.nyc.gov/assets/doc/downloads/pdf/FY17_1st_QUARTER_2016_d

emog.pdf (last visited June 23, 2017) ..................................................................... 9

Connecticut Department of Children and Family Services, Connecticut Juvenile

Training School, available at

http://www.ct.gov/dcf/cwp/view.asp?a=4606&q=539022 (last visited June 23,

2017) ....................................................................................................................... 6

Connecticut Department of Correction, Research Legal Status within Correctional

Facilities: Population Confined June 1, 2017, available at

http://www.ct.gov/doc/lib/doc/PDF/MonthlyStat/Stat201706.pdf (last visited

June 23, 2017) .................................................................................................. 6, 11

Foster Care, Facts about Children in Foster Care in Connecticut, available at

http://www.hunter.cuny.edu/socwork/nrcfcpp/downloads/fact-sheets/CT-Facts-

FCM08.pdf (last visited June 23, 2017) ............................................................... 10

Jacqueline Rabe Thomas, The CT Mirror, The state of Connecticut juvenile

incarceration in 17 charts (Sept. 30, 2015), available at

https://ctmirror.org/2015/09/30/juvenile-justice-in-ct-in-17-charts/ (last visited

June 23, 2017) ............................................................................................ 6, 10, 11

New York State Division of Criminal Justice Services, Office of Justice Research

and Performance, Statewide Juvenile Justice Indicators (last updated July 2016),

available at http://www.criminaljustice.ny.gov/crimnet/ojsa/jj-reports/jj-

indicators-2010-2015.pdf (last visited June 23, 2017) ........................................... 6

Office of Children & Family Services, New York State, The OCFS Initiative to

Address Racial Disproportionality in Child Welfare and Juvenile Justice (Jan.

19, 2011), available at https://www.nycourts.gov/ip/casa/training/ocfs-

disproportionality.pdf (June 23, 2017) ................................................................... 9

Office of Criminal Justice, The City of New York, Justice Brief: The Jail

Population, Recent declines and opportunities for further reductions (2016),

available at

https://www1.nyc.gov/assets/criminaljustice/downloads/pdfs/justice_brief_jailpo

pulation.pdf (last visited June 23, 2017) ............................................................5, 9

viii

Office of Justice Programs, U.S. Dept. of Justice, Jail Inmates in 2015 (Dec.

2016), available at https://www.bjs.gov/content/pub/pdf/ji15.pdf (last visited

June 23, 2017) .....................................................................................................5, 9

Prison Policy Initiative, Connecticut Profile: Racial and ethnic disparities in

prison and jails (Dec. 2016), available at

https://www.prisonpolicy.org/graphs/disparities2010/CT_racial_disparities_2010

.html (last visited June 23, 2017) ........................................................................... 9

United States Census Bureau, QuickFacts: United States (2015), available at

https://www.census.gov/quickfacts/table/PST045216/00 (last visited June 23,

2017) ....................................................................................................................... 9

U.S. Immigration and Customs Enforcement, DHS releases end of fiscal year 2016

statistics, available at https://www.ice.gov/news/releases/dhs-releases-end-

fiscal-year-2016-statistics (last visited June 23, 2017) .......................................... 7

Vermont Department for Children and Families, Report to Vermont Governor Phil

Scott (Jan. 2017), available at http://legislature.vermont.gov/assets/Legislative-

Reports/2017-CFCPP-Annual-Report-2017.01.17.pdf

(last visited June 23, 2017) ................................................................................... 11

1

INTEREST OF AMICI CURIAE1

Amici are law professors, immigrants’ rights groups, and legal services

organizations that represent adults and children who are physically separated from

their families for months and years because of criminal charges, deportation

proceedings, and child welfare system involvement. Our clients experience pre-

trial incarnation and post-disposition imprisonment as defendants in criminal and

family court; detention by U.S. Immigration Enforcement or the Office of Refugee

Resettlement, often without judicial review, as they go through deportation

proceedings; and foster care placement and other separation as they go through

abuse, neglect, custody, and visitation proceedings before the family courts.

Though these periods of temporary separation come with no change to the legal

relationship between a parent and child, the Board of Immigration Appeals

(“BIA”) has nevertheless decided, erroneously, that Congress intended to deny

U.S. citizenship to lawful permanent resident youth who are separated from their

parents under these circumstances. The BIA’s interpretation is incorrect, and

interferes with well-established constitutional rights of parents and children.

Every year, thousands of parents and children nationwide are forcibly

separated for periods of time due to criminal incarceration, immigration and

juvenile detention, and child welfare system involvement. They include lawful

1 For more information about amici¸ please refer to the individual statements of

interest in the Appendix.

2

permanent resident youth who might derive U.S. citizenship through a parent under

the derivative citizenship statute, 8 U.S.C. §1431 [hereinafter “§1431” or “the

derivative citizenship statute”]. In the Petitioner’s case, the BIA held that “legal

custody” and “physical custody” are separate elements of the derivative citizenship

statute, and that a green card holder who is a minor and otherwise eligible to derive

citizenship through a parent cannot do so merely because they temporarily do not

live under the same roof, even where that forced, temporary separation comes with

no modification whatsoever to their legal or personal relationship.

Amici agree with the Petitioner’s principal arguments that §1431’s plain

language unambiguously forecloses the government’s interpreting “legal” and

“physical” custody as separate elements, and that “legal and physical custody” is a

unitary concept that is not affected by a temporary separation where there has been

no judgment or adjudication of a change in the relationship between a parent and

child. We write separately to ensure that the Court understands that if it

nevertheless finds the derivative citizenship statute ambiguous on this point, the

rules of statutory interpretation—specifically, the doctrine of constitutional

avoidance and the rule of lenity—foreclose the government’s interpretation in

favor of the interpretation offered by the Petitioner and amici. The BIA’s

construction would have an impermissible effect on constitutionally-protected

3

parental rights and, because an alternative interpretation that passes constitutional

muster exists, cannot stand.

SUMMARY OF ARGUMENT

Amici agree with the Petitioner that the plain language meaning of the term

“legal and physical custody” in the derivative citizenship statute, 8 U.S.C. §1431,

unambiguously forecloses the BIA’s interpretation. Should this Court nevertheless

find the statute ambiguous, this Court must apply relevant rules of statutory

interpretation to resolve the ambiguity, and must conclude that the BIA’s

interpretation is incorrect and unauthorized by the statute. The doctrine of

constitutional avoidance mandates that “where a statute is susceptible of two

constructions, by one of which grave and doubtful constitutional questions arise

and by the other of which such questions are avoided, [the court’s] duty is to adopt

the latter.” Jones v. United States, 529 U.S. 848, 857 (2000) (internal citations and

quotation marks omitted). In this instance, the BIA’s interpretation abrogates

constitutionally established rights that sit at the heart of the relationships between

children and parents. By finding that a period of involuntary, temporary separation

that, as the BIA itself acknowledges, does nothing whatsoever to alter the legal

relationship between a child and parent, nonetheless precludes the derivation of

citizenship as Congress intended, the BIA tramples the rights of children and

parents experiencing incarceration, detention, and foster care placement. Given

4

that a more reasonable, alternative interpretation of the statute exists, it must be

construed in this way to avoid unconstitutional application.

The rule of lenity likewise forecloses the BIA’s interpretation. This time-

honored rule requires that ambiguities in a statute that has criminal application be

construed to narrow its punitive reach. This is true for solely criminal statutes, and

statutes that have dual civil and criminal application—“hybrid” statutes—like the

INA, including the very provision at issue here, §1431. If, after applying all other

rules of statutory construction this Court nevertheless finds the derivative

citizenship statute remains ambiguous, it must apply the last-resort rule of lenity to

construe the statute as authorizing rather than restricting derivative citizenship.

STANDARD OF REVIEW

This Court reviews issues of citizenship de novo, and not under the

deference framework of Chevron, U.S.A., Inc. v. Natural Resources Defense

Counsel, Inc., 467 U.S. 837 (1984). See 8 U.S.C. §1252(b)(5)(A); Morales-

Santana v. Lynch, 804 F.3d 520, 525 (2d Cir. 2015) (reversed in part on other

grounds sub nom Sessions v. Morales-Santana, __ U.S. __, 2017WL2507339

(2017)).

5

ARGUMENT

I. EVERY YEAR, INCARCERATION, JUVENILE DETENTION,

IMMIGRATION DETENTION, AND FOSTER CARE

PLACEMENT IMPOSE TEMPORARY PERIODS OF

SEPARATION ON THOUSANDS OF FAMILIES ACROSS THE

UNITED STATES

A. Thousands of Families Every Year Face Forced, Temporary

Separation, with No Legal Change to the Relationship

Between Family Members

In the adult criminal justice system, on average the United States holds

731,300 people in a county or city jail every day; annually, 10.9 million people are

admitted into a jail.2 In 2016, in New York City alone there were 61,000

admissions into Department of Corrections custody.3 Of these admissions, 75%

(45,750 people) were unable to pay bail or remanded, and consequently faced

some length of pre-trial incarceration.4 In the child welfare system, recent statistics

show more than 400,000 children annually in foster care, with 240,000 children

entering the foster care system every year.5 The average time spent in foster care—

2 Office of Justice Programs, U.S. Dept. of Justice, Jail Inmates in 2015 1 (Dec.

2016), available at https://www.bjs.gov/content/pub/pdf/ji15.pdf (last visited June

23, 2017). 3 Office of Criminal Justice, The City of New York, Justice Brief: The Jail

Population, Recent declines and opportunities for further reductions 14 (2016)

[hereinafter “City of New York Justice Brief”], available at

https://www1.nyc.gov/assets/criminaljustice/downloads/pdfs/justice_brief_jailpopu

lation.pdf (last visited June 23, 2017). 4 Id. at 11.

5 Administration for Children and Families, U.S. Dept. of Health and Human

Services, 23 The AFCARS Report 1, available at

6

which includes families who reunify and families who do not—is 20 months.6 In

the juvenile justice system, in 2014, there were 5,066 juveniles detained in New

York State.7 In Connecticut, as of June 2017 there are 572 juveniles (including 246

who are un-sentenced) detained in Connecticut’s primary facility for housing

sentenced inmates under the age of 21.8 In Connecticut, the average juvenile

sentence for boys adjudicated as delinquent and committed to the Department of

Children and Family Services is eight months.9 In the immigration system, in 2016

the federal government detained 352,882 people.10

These thousands of individuals

https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport23.pdf (last visited June

23, 2017). 6 Id. at 2.

7 New York State Division of Criminal Justice Services, Office of Justice Research

and Performance, Statewide Juvenile Justice Indicators (last updated July 2016),

available at http://www.criminaljustice.ny.gov/crimnet/ojsa/jj-reports/jj-indicators-

2010-2015.pdf (last visited June 23, 2017). 8 Connecticut Department of Correction, Research Legal Status within

Correctional Facilities: Population Confined June 1, 2017 [hereinafter

“Connecticut Correctional Facilities Research”], available at

http://www.ct.gov/doc/lib/doc/PDF/MonthlyStat/Stat201706.pdf (last visited June

23, 2017). 9 Jacqueline Rabe Thomas, The CT Mirror, The state of Connecticut juvenile

incarceration in 17 charts (Sept. 30, 2015), available at

https://ctmirror.org/2015/09/30/juvenile-justice-in-ct-in-17-charts/ (last visited

June 23, 2017); Connecticut Department of Children and Family Services,

Connecticut Juvenile Training School, available at

http://www.ct.gov/dcf/cwp/view.asp?a=4606&q=539022 (last visited June 23,

2017). 10

U.S. Immigration and Customs Enforcement, DHS releases end of fiscal year

2016 statistics, available at https://www.ice.gov/news/releases/dhs-releases-end-

fiscal-year-2016-statistics (last visited June 23, 2017).

7

and families include LPR minors who will not derive citizenship through their

parents under the BIA’s interpretation of the derivative citizenship statute.

For these young people, a State court judge’s decision to set bail or order

other pre-trial custody, to order juvenile detention, or to place a child in foster care

will determine whether they are citizens of the United States. For families

experiencing immigration detention, derivative citizenship will depend on the

government’s unilateral decision to detain individuals for months, sometimes

years, without the opportunity for third-party review or judicial oversight. Cf. Diop

v. Att’y Gen. of the United States, 656 F.3d 221, 226 (3d Cir. 2011) (ICE detaining

a man for 1072 days without an independent custody determination hearing). Such

an outcome would be arbitrary and capricious and a violation of due process,

particularly where the “interest” at issue is as “weighty” as citizenship status.

Landon v. Plasencia, 459 U.S. 21, 35 (1982). The “history of the laws governing

the derivative naturalization of children demonstrates clearly that Congress

intended … to preserve the family unit and to keep families intact.” Nwozuzu v.

Holder, 726 F.3d 323, 329 (2d Cir. 2013).

“The fundamental requirement of due process is the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” Matthews v. Eldridge,

424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). Where a serious consequence like the deprivation of citizenship is at issue

8

and the factors under consideration in the determinative proceeding speak only to

an ancillary matter, this core requirement of due process is not fulfilled because the

hearing is not “meaningful.” Matthews, 424 U.S. at 333. See infra §I.C.

Moreover, the BIA’s rule would lead to arbitrary results: a person

“appearing before one official may suffer deportation, while an identically situated

[person] appearing before another may” have his “right to stay in this country”

recognized. Judulang v. Holder, 545 U.S. 42, 58 (2011). A person’s citizenship

status cannot be “dependent on circumstances so capricious and fortuitous[,]”

Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), or decided by “sport of

chance.” Judulang, 545 U.S. at 58 (internal quotation omitted). That is what the

“‘arbitrary and capricious’ standard is designed to thwart.” Id.

B. Systemically-Created, Forced, Temporary Separation Has a

Hugely Disproportionate Impact on Black and Latino

Families

In the adult criminal justice system, in 2016 88% of the New York City jail

population was Black or Latino, even though Black and Latino people account for

approximately 54% of the city’s population.11

In Connecticut, Black people are

11

City of New York Justice Brief, supra note 2, at 12; City of New York Dept. of

Correction, Population Demographics Report, available at

https://www1.nyc.gov/assets/doc/downloads/pdf/FY17_1st_QUARTER_2016_de

mog.pdf (last visited June 23, 2017).

9

10% of the state population but 41% of the prison and jail population.12

Nationally,

in 2015 Black people accounted for 35% of the local jail population but 13.3% of

the general population.13

In the child welfare system, the racial disparities are no less shocking. In

New York City, 13.9 per 1,000 Black children are in foster care, 6.1 per 1,000

Latino children, and 1.1 per 1,000 White children.14

In Connecticut, 60% of

children in foster care are Black or Latino, while 25% of the state’s child

population is Black or Latino.15

Nationally, Native American children are the most

overrepresented in the child welfare system.16

12

Prison Policy Initiative, Connecticut Profile: Racial and ethnic disparities in

prison and jails (Dec. 2016), available at

https://www.prisonpolicy.org/graphs/disparities2010/CT_racial_disparities_2010.h

tml (last visited June 23, 2017). 13

Office of Justice Programs, U.S. Dept. of Justice, Jail Inmates in 2015 4 (Dec.

2016), available at https://www.bjs.gov/content/pub/pdf/ji15.pdf (last visited June

23, 2017); United States Census Bureau, QuickFacts: United States (2015),

available at https://www.census.gov/quickfacts/table/PST045216/00 (last visited

June 23, 2017). 14

Office of Children & Family Services, New York State, The OCFS Initiative to

Address Racial Disproportionality in Child Welfare and Juvenile Justice 30 (Jan.

19, 2011), available at https://www.nycourts.gov/ip/casa/training/ocfs-

disproportionality.pdf (June 23, 2017). 15

Foster Care, Facts about Children in Foster Care in Connecticut, available at

http://www.hunter.cuny.edu/socwork/nrcfcpp/downloads/fact-sheets/CT-Facts-

FCM08.pdf (last visited June 23, 2017). 16

Administration for Children and Families, U.S. Dept. of Health and Human

Services, ACYF/Recent Deomographic Trends in Foster Care 2 (Sept. 2013),

available at

https://www.acf.hhs.gov/sites/default/files/cb/data_brief_foster_care_trends1.pdf

(last visited June 23, 2017).

10

In the juvenile justice system, Black children in New York are seven times

more likely than White children to be arrested and referred to juvenile court and

three times more likely to spend time in secure detention pre-adjudication.17

In

Vermont, compared to White children, Black children are two times more likely to

be arrested and referred to juvenile court and almost three times more likely to

spend time in secure detention pre-adjudication.18

And in Connecticut, compared to

White children, Black children are five times more likely to be arrested and

referred to juvenile court and two times more likely to spend time in secure

detention pre-adjudication.19

In New York, compared to White children, Latino

children are two times more likely to be arrested and referred to juvenile court and

almost three times more likely to spend time in secure detention pre-adjudication.20

In Connecticut, Latino children are two times more likely to be arrested and

referred to juvenile court and to spend time in secure detention pre-adjudication.21

Out of the 572 juveniles in Connecticut’s main juvenile correctional facility, 303

(53%) are Black, 165 (29%) are Latino, and 103 (18%) are White.22

Making up

about 12% of the population 10-17 years old, Black children are five times more

17

Rabe Thomas, supra note 8. 18

Id. 19

Id. 20

Id. 21

Id. 22

See Connecticut Correctional Facilities Research, supra note 7.

11

likely to be arrested.23

In Vermont’s largest county, youth of color are sent to

detention and the courts at higher rates than White youth.24

The inevitable effect of the Board’s rule will be the disproportionate

deprivation of derivative citizenship to Black and Latino families. The disparities

in rates of forced, temporary separation between White, Black, and Latino families

is startling. “[T]he Due Process Clause of the Fifth Amendment contains an equal

protection component prohibiting the United States from invidiously

discriminating between individuals or groups.” Washington v. Davis, 446 U.S. 229,

239 (1976) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)). That the BIA has

chosen an interpretation of the statute that will so flagrantly discriminate based on

race should give this Court deep concern. Cf. M.L.B. v. S.L.J., 519 U.S. 102, 115

(1996).

C. The Statutory Factors That Determine Forced, Temporary

Separation Do Not Include a Parent’s Legal and Physical

Custody

In the contexts of adult criminal bail proceedings, juvenile pre-trial detention

proceedings, immigration detention, and child welfare system involvement, the

statutory factors that determine whether there will be a period of forced, temporary

23

Rabe Thomas, supra note 8. 24

Vermont Department for Children and Families, Report to Vermont Governor

Phil Scott 4 (Jan. 2017), available at

http://legislature.vermont.gov/assets/Legislative-Reports/2017-CFCPP-Annual-

Report-2017.01.17.pdf (last visited June 23, 2017).

12

separation do not have anything to do with changing the legal and physical custody

status and family relationship elements of derivative citizenship. The only statutory

consideration under New York’s adult criminal bail statute is the “degree of

control or restriction that is necessary to secure [the defendant’s] court

attendance[.]” N.Y. Crim. Proc. Law §510.30(2)(a) (McKinney 2017). The statute

directs judges to consider a range of factors in making this determination, notably

excluding anything that would have bearing on an issue of derivative citizenship.

See id. §510.30(2)(a)(i)-(ix) (requiring the judge to consider, inter alia, character,

reputation, habits and mental condition; employment and financial resources; the

weight of the evidence against the defendant). Even where the criminal matter

under adjudication involves a family relationship, the bail factors do not expand to

include anything that has bearing on derivative citizenship. See id.

§510.30(2)(a)(vii) (enumerating the additional factors).

In Connecticut, the only statutory bail consideration is the ability of the

restriction to “reasonably ensure the appearance of the arrested person in court[.]”

Conn. Gen. Stat. §54-64a(1) (West). See also id. §54-64(a)(2) (enumerating the

factors the judge may consider which, like New York’s, do not include issues that

relate to derivative citizenship). And as in New York, the additional factors that

may be reviewed in family offense cases do not expand to include issues that have

bearing on derivative citizenship. See id. §54-64(b)(1)-(2). In Vermont, the only

13

statutory consideration is the ability of the restriction to “reasonably ensure the

appearance of the person[.]” Vt. Stat. Ann. tit. 13, §7554(a)(1) (West). The specific

factors subject to review are not related to issues affecting derivative citizenship.

See id. §7554(b).

The same is true in juvenile proceedings in these three states: the statutory

factors that permit pre-trial detention include nothing that can be construed as

impacting the parent-child relationship, let alone derivative citizenship. See N.Y.

Fam. Ct. Act §320.5(3)(a); Conn. Gen. Stat. §46b-133(c) (West); Vt. Stat. Ann. tit.

13, §7554(j) (West). In the immigration context, the BIA’s position is that the only

factors relevant to a custody determination are if the individual presents a danger to

persons or property, is a threat to national security, or poses a risk of flight. Matter

of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006) (citing Matter of Adeniji, 22 I. & N.

Dec. 1102 (BIA 1999)).

In the child welfare context, the factors affecting a family court

determination on whether to temporarily remove a child from a home do not

include changing the legal and physical custody status and family relationship

elements of derivative citizenship. In New York, §1028(a) of the Family Court Act

contemplates only “imminent risk to the child’s life or health[.]” N.Y. Fam. Ct. Act

§1028(a). Connecticut similarly considers only illness, injury, and physical

danger, see Conn. Gen. Stat. §46b-129(b), as does Vermont. See Vt. Stat. Ann. tit.

14

33, §5308(a) (West). The legal relationship between the parent and child is not

adjudicated at this stage of the family court proceeding, and yet the BIA would

have this temporary custody determination dictate a minor’s citizenship status.

As discussed supra, the Supreme Court requires “the opportunity to be

heard at a meaningful time and in a meaningful manner” for a government decision

to comply with the Due Process Clause. Matthews, 424 U.S. at 333 (internal

quotation omitted). It is implicit in this requirement that the hearing be on issues

germane or determinative of the outcome. Here, that condition is not met, as the

BIA would have it that the question of whether a minor who holds a green card

derives citizenship through his or her parent is decided at a hearing that

contemplates neither the legal relationship between the parent and child nor the

derivative citizenship statute itself. The Supreme Court has expressed “little doubt

that the Due Process Clause would be offended if a State were to attempt to force

the breakup of a natural family, over the objections of the parents and their

children, without some showing of unfitness.” Quilloin v. Walcott, 434 U.S. 246,

255 (1978). The BIA’s interpretation violates this very principle.

II. TO AVOID VIOLATING ESTABLISHED CONSTITUTIONAL

RIGHTS THAT BEAR ON THE RELATIONSHIP BETWEEN

PARENTS AND CHILDREN, THE STATUTORY TERM “LEGAL

AND PHYSICAL CUSTODY” CANNOT BE READ TO BE

DEFEATED BY A PERIOD OF FORCED, TEMPORARY

SEPARATION

15

A. The BIA’s Reading of the Statutory Term “Legal and

Physical Custody” Impinges on the Relationship Between

Parents and Children That Is Protected by the

Constitution’s Due Process Clause

The BIA’s parsing of the derivative citizenship statute to include two

separate requirements—a legal custody requirement and a physical custody

requirement—is not only incorrect, but also will have effects on families

experiencing forced, temporary separation that are not only life-altering but also

violate constitutional due process rights. Moreover, the BIA’s reading of the

statute, which purports to recognize the sanctity of the parent-child relationship,

perversely intrudes on that very relationship by attaching outsized significance to

the fact that, for many different, often involuntary reasons that have nothing to do

with legal and physical custody status, parents and children sometimes do not live

under the same roof. It infringes on rights the Supreme Court has recognized,

across time and across circumstances, as constitutionally protected.

In a number of cases spanning nearly 100 years, the Supreme Court has

recognized the importance of the relationship between parents and children, and

found the rights of parents with respect to their children’s upbringing to be

entrenched in the Constitution itself, most particularly in the Due Process Clause.

“Choices about … family life, and the upbringing of children are among [the]

rights th[e] Court has ranked as ‘of basic importance in our society,’ … rights

sheltered by the Constitution against … unwarranted usurpation, disregard, or

16

disrespect.” M.L.B., 519 U.S. at 117 (quoting Boddie v. Connecticut, 401 U.S. 371,

376 (1971)) (collecting cases). Most relevant to the constitutional rights at issues in

the Board’s parsing of the statutory term “legal and physical custody” is the

Supreme Court’s decision in Santosky v. Kramer, 455 U.S. 745 (1982). In

Santosky, the Court considered the constitutionality of the standard for terminating

parental rights under the New York Family Court Act. Id. at 747-48. Central to the

Court’s holding was its proclamation that the “fundamental liberty interest of

natural parents in the care, custody, and management of their child does not

evaporate simply because they lost temporary custody of the child to the State.” Id.

at 753. Moreover, in evaluating the standard for terminating parental rights

required by the Due Process Clause, the Court balanced, inter alia, the interests of

the natural parents against the governmental interests in the wellbeing of the child

and fiscally efficient proceedings, and found that the Constitution rendered the

Family Court Act constitutionally deficient. Id. at 758-59, 761, 766 (citing

Matthews, 424 U.S. at 335). Santosky provides support for the notion that a natural

parent retains physical custody of a child notwithstanding the temporary separation

imposed by placement in foster care or a state institution. See id. at 749.

But this Nation’s acknowledgment of the constitutionally protected rights

that exist between parents and their children did not begin or end with Santosky. In

1925, the Court found that parents and guardians have a constitutional right to

17

direct the upbringing and education of the children under their control. See Pierce

v. Society of Sisters, 268 U.S. 510, 534-35 (1925). In a string of subsequent

decisions, the Court recognized the constitutional rights that families enjoy. See,

e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 651 (1974) (“This

Court has long recognized that freedom of person choice in matters of … family

life is one of the liberties protected by the Due Process Clause.”); Moore v. East

Cleveland, 431 U.S. 494, 495-96, 503 (1977) (“U.S. Supreme Court decisions

establish that the Constitution protects the sanctity of the family precisely because

the institution of the family is deeply rooted in U.S. history and tradition.”);

Quilloin, 434 U.S. at 255.

The “right” to remain with “immediate family” is “a right that ranks high

among the interests of the individual.” Landon, 459 U.S. at 34 (citing Moore, 431

U.S. at 499, 503-504; Stanley v. Illinois, 405 U.S. 645, 651 (1972)). If found

ambiguous, the derivative citizenship statute must be read to preserve these rights

of parents and children.

B. The Canon of Constitutional Avoidance Forecloses the

BIA’s Reading of the Statutory Term “Legal and Physical

Custody”

“[W]here a statute is susceptible of two constructions, by one of which grave

and doubtful constitutional questions arise and by the other of which such

questions are avoided, [the court’s] duty is to adopt the latter.” Jones, 529 U.S. at

18

857 (internal citations and quotation marks omitted). This “‘tool for choosing

between competing plausible interpretations of a statutory text’” is known

generally as the doctrine of constitutional avoidance. U.S. v. Martinez, 525 F.3d

211, 215-16 (2d Cir. 2008) (quoting Clark v. Martinez, 543 U.S. 371, 380-81

(2005)). It is an “elementary rule[,]” DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485 U.S. 568, 575 (1988), that

“recognizes that Congress, like this Court, is bound by and swears by an oath to

uphold the Constitution. The courts will therefore not lightly assume that Congress

intended to infringe constitutionally protected liberties or usurp power

constitutionally forbidden it.” Valenzuela-Gallardo v. Lynch, 818 F.3d 808, 817

(9th Cir. 2016). See also Lora v. Shanahan, 804 F.3d 601, 607 (2d Cir. 2015)

(quoting Zadvydas v. Davis, 533 U.S. 678, 682, 690 (2001)) (construing an

immigration detention statute to “avoid significant constitutional concerns” that lie

“‘at the heart of the liberty that [the Due Process] Clause protects’”).

If this Court finds the derivative citizenship statute ambiguous, it must

construe the statute to foreclose the BIA’s interpretation in order to avoid

unconstitutional application. The BIA’s decision to treat legal custody and physical

custody as separate elements of derivative citizenship, rather than to treat “legal

and physical custody” as a unitary concept as the statutory text demands is not only

incorrect, but will significantly intrude on established constitutional rights

19

protecting families. The racially discriminatory effect of the Board’s interpretation,

and the due process problems implicit in conditioning citizenship on hearings

where the relationship between a parent and child is not at issue, together further

mandate application of the doctrine of constitutional avoidance to adopt the

reading of the derivative citizenship statute proposed by the Petitioner and amici.

III. THE RULE OF LENITY LIKEWISE FORECLOSES THE BIA’S

INTERPRETATION OF THE STATUTORY TERM “LEGAL AND

PHYSICAL CUSTODY”

The INA has myriad provisions that have criminal application. See, e.g., 8

U.S.C. §1327 (criminal violation to assist an inadmissible alien); id. §1253(a)(1)

(criminal violation for failing to depart pursuant to an order of removal). id. §§

1101(a)(43), 1326 (conviction for an aggravated felony creates a statutorily

mandated sentencing enhancement for defendants convicted of illegal reentry).

Embedded across these criminal provisions are the terms “alien” and “citizen,”

whose meanings are affected by the interpretation of §1431. The criminal

provisions of the INA are almost universally defined by some absence of U.S.

citizenship. Like the statutes at issue in The Supreme Court’s decisions in United

Sates v. Thompson/Center Arms Co., 504 U.S. 505 (1992) (plurality opinion), and

FCC v. ABC, 347 U.S. 284 (1954), see infra, its ambiguities must be resolved to

narrow the statute’s punitive reach. In this instance: read to permit the conferral of

citizenship, rather than to preclude it.

20

If, after applying the doctrine of constitutional avoidance and the other rules

of statutory construction to the derivative citizenship statute the Court nevertheless

finds it ambiguous, the Court must apply the criminal rule of lenity and find that

the BIA’s interpretation is foreclosed. The rule of lenity mandates that where there

is ambiguity in a criminal statute, the ambiguity must be resolved in favor of the

criminal defendant by narrowing punitive reach of the statute. See United States v.

Bass, 404 U.S. 336, 347 (1971). It is a “time-honored” rule of statutory

interpretation. Crandon v. United States, 494 U.S. 152, 158 (1990). The rule

applies also to resolving ambiguities in “hybrid” statutes—those that carry both

civil and criminal applications—like the INA. This is because the Supreme Court

recognizes a unitary-meaning principle: a statutory provision that has both civil

and criminal applications carries a single, unitary meaning. Leocal v. Ashcroft, 543

U.S. 1, 11, n.8 (2004). The derivative citizenship provision in §1431 is the

quintessential hybrid statute: one that equally dictates both civil and criminal

outcomes.

The rule of lenity is the last rule applied to ascertain the meaning of an

ambiguous statute. In the context of federal court review of an agency decision, it

means that it is applied on de novo review, and not within the deference framework

of Chevron. In an immigration case, it requires that any lingering ambiguity in the

immigration statute be resolved in the immigrant’s favor.

21

The Supreme Court’s seminal immigration adjudication decision in Leocal

reflects its overarching recognition of a unitary-meaning principle that requires that

there be only interpretation of a hybrid statute like the INA. See, e.g.,

Thompson/Center Arms Co., 504 U.S. at 518 n.10; FCC, 347 U.S. at 296. See also

Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011); Clark,

543 U.S. at 380; Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 408-09

(2003). In Thompson, the Court construed the National Firearms Act, a “tax

statute” the Court was examining in a “civil setting” but that also has “criminal

applications.” Thompson/Center Arms Co., 504 U.S. at 517. In FCC, the Court

wrote, in the context of a civil case, that “[t]here cannot be one construction for the

Federal Communications Commission and another for the Department of Justice.”

347 U.S. at 296. See also, e.g., Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1027-

28 (6th Cir. 2016) (Sutton, J. dissenting in part and concurring in part) (overruled

on other grounds sub nom Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017))

(“Time, time, and time again, the Court has confirmed that the one-interpretation

rule means that the criminal-law construction of the statute (with the rule of lenity)

prevails over the civil-law construction of it.”). Disregarding this uniform-meaning

principle would render the statute a “chameleon, its meaning subject to change”

depending on the circumstances. Clark, 543 U.S. at 382.

22

CONCLUSION

In the Petitioner’s case, the BIA inaccurately interpreted the derivative

citizenship provision of the INA, 8 U.S.C. §1431, to withhold derivative

citizenship from lawful permanent resident youth in families experiencing periods

of forced, temporary separation. This is not only is an incorrect interpretation of

the statutory text but, even if the text were deemed ambiguous, fails to apply the

doctrine of constitutional avoidance and the rules of lenity, and must be rejected.

Respectfully submitted,

Dated: June 24, 2017 /s/ Andrew Wachtenheim

Andrew Wachtenheim

40 West 39th Street, Fifth Floor

New York, NY 10018

Telephone: (646) 760-0588

Counsel for Amici

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), and Second Circuit Rule 32, I

certify that the attached brief is proportionately spaced, has a typeface of 14 points

or more, and contains 4,859 words.

Dated: June 24, 2017 /s/Andrew Wachtenheim

ANDREW WACHTENHEIM

Counsel for Amici

DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and 29(c), amici curiae state that no

publicly held corporation owns 10% or more of the stock of any of the parties

listed above.

Pursuant to Fed. R. App. P. 29(c)(5), amici curiae state that no counsel for

the party authored the subsequently-filed amicus brief or this motion in whole or in

part, and no party, party’s counsel, or person or entity other than amicus curiae and

its counsel contributed money that was intended to fund preparing or submitting

the motion or brief.

CERTIFICATE OF SERVICE

I, Andrew Wachtenheim, hereby certify that I electronically filed the foregoing

brief and appendix with the Clerk of the Court for the United States Court of

Appeals for the Second Circuit by using the appellate CM/ECF system on June 24,

2017.

I certify that all participants in the case that require service are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF system.

Date: June 24, 2017 /s/ Andrew Wachtenheim

New York, NY Andrew Wachtenheim

40 West 39th Street, Fifth Floor

New York, NY 10018

(646) 760-0588

Counsel for Amici Curiae